This order is subject to further editing and
modification.The final version will
appear in the bound volume of the official reports.

No.07-11

In the matter of the petition to create a rule governing
the discretionary transfer of cases to tribal court

FILED

JUL 31, 2008

David R. Schanker

Clerk of Supreme Court

Madison,
WI

On July 24, 2007, A. John Voelker,[1]
Director of State Courts, on behalf of the State-Tribal Justice Forum,[2]
petitioned the court to create a rule governing the discretionary transfer of
cases to tribal court, pursuant to the court's rulemaking authority under Wis.Stat. § 751.12. On
October 1, 2007, the court issued an order scheduling the petition for a public
hearing on January 8, 2008.

At the hearing at 9:30 a.m. on January 8, 2008, the
petition was presented to the court by Honorable James Mohr, LacCourte Orielles Tribal Court,
Chairperson, State-Tribal Justice Forum.Judge Mohr testified in favor of the petition and responded to questions
posed by individual justices.Six other
individuals testified in favor of the petition and were questioned: (1) Honorable
Eugene White-Fish, Forest County Potowatomi Tribal Court; (2) Honorable John
Anderson, Bayfield County Circuit Court; (3) Representative Gary Sherman, member
of Legislative Council Special Committee on State-Tribal Relations; (4) Attorney
Kenneth J. Artis, Black River Falls, Wisconsin; (5) Honorable Stanley Webster,
Oneida Tribal Judicial System; and (6) Huma Ahsan, Deputy Director, Great Lakes
Indian Law Center, University of Wisconsin Law School and former Chief Justice
of Turtle Mountain Court of Appeals, Bellacourt, North Dakota.No individual or representative of any group
testified in opposition to the petition.

Following the hearing, the court held an open
administrative conference to discuss the petition.After discussion, the court voted to request
further comment on three issues raised during the court's discussion of the
petition:First, under what
circumstances is jurisdiction concurrent between tribal and state courts or
exclusive in tribal or state court?Second, is there a right under the United
States or Wisconsin
constitution to have a case heard in state court rather than tribal court?Third, how does the proposed rule impact the
application of Wis. Stat. § 806.245
(full faith and credit)?On January 11,
2008, the Clerk issued a letter to agencies and organizations with a potential
interest in the petition requesting that comments on these issues be submitted
to the court.

The court received three responses to its request.On February 15, 2008, the State-Tribal
Justice Forum, writing to help the court "move forward with this historic
rule," provided a seven-page single-spaced discussion of the current legal
status, case law, and history of the jurisdictional and constitutional issues
raised by the court, with two substantive attachments.The first attachment was a tribal court
directory—a court-by-court index of Wisconsin's tribal courts, including the
names of the judges, prosecutors, and tribal attorneys, the court's source of
power, the areas of subject matter and personal jurisdiction, and tribal
membership criteria.The second
attachment was a United States Department of Justice memorandum regarding
Public Law 83-280, which conferred jurisdiction on certain states, including Wisconsin, over most or
all of Indian country within their borders.On February 15, 2008, the Great LakesIndianLawCenter filed a 29-page single-spaced
report "to assist the court with building a solid legal foundation for the
proposed rule" and focusing on "the interplay between the State court
and the Tribal court justice systems located in Wisconsin."On February 22, 2008, the Department of
Justice provided an 11-page single-spaced examination of the jurisdictional and
constitutional issues raised by the court, including recommendations for
revision to resolve these issues.

In response to these comments, the Clerk prepared a
revised draft of the proposed rule and, on March 5, 2008, provided it to the
three commenting parties.On March 11,
2008, the State-Tribal Justice Forum responded with further suggestions and
comments.On March 18, 2008, the
Department of Justice provided further comments.On April 2, 2008, Representative Terry
Musser, Chair of the Joint Legislative Council's Special Committee on
State-Tribal Relations, submitted an 11-page single-spaced memorandum from the
Wisconsin Legislative Council containing technical comments about the original
and revised drafts of the proposed rule.Representative Musser indicated that the Special Committee has not taken
a position on the petition.

On April 15, 2008, the court discussed the proposed
rule and the commentary at its open administrative conference.The court voted on specific changes to the
proposed rule and examined the possibility of adapting an existing statute, Wis.
Stat. § 801.63, to
accommodate the transfer of cases from state court to tribal court as an
alternative to the creation of a new rule.The court charged the Clerk with the task of drafting alternative
versions of the rule: (1) a redraft of the proposed rule Wis. Stat. § 801.54 incorporating
changes discussed and voted upon by the court, and (2) a draft of Wis. Stat. § 801.63 revised to
include transfers to tribal court.At
the court's request, on May 29, 2008, the Clerk submitted these drafts to
Justice Crooks, who, upon reviewing these materials, determined that a revision
of Wis. Stat. § 801.63
was not a feasible mechanism for transfer of cases to tribal court.

On June 24, 2008, the court received a comment on the
proposed rule from Attorney Meg Vergeront on behalf of the Village
of Hobart,
asking that the court not approve the proposed rule in its current form and
instead schedule a public hearing so that certain issues could be explored.On June 25, 2008, the court discussed Attorney
Vergeront's comment and the alternative drafts at an open administrative
conference.After discussion, the court
voted to adopt the petition, as modified. Justice Roggensack dissented from the adoption
of the petition; Justice Prosser and Justice Ziegler have joined in the
dissent.Finally, the court ruled that
the effective date of this rule shall be January 1, 2009, and that the court
will review the operation of this rule in two years from the effective date.

Therefore,

IT IS ORDERED that effective January 1, 2009:

Section 1.801.54 of the statutes is created to read:

801.54Discretionary transfer of civil actions to
tribal court.(1)Scope.In a civil action where a circuit court and a
court or judicial system of a federally recognized American Indian tribe or
band in Wisconsin ("tribal court") have concurrent jurisdiction, this
rule authorizes the circuit court, in its discretion, to transfer the action to
the tribal court when transfer is warranted under the factors set forth in sub.
(2). This rule does not apply to any
action in which controlling law grants exclusive jurisdiction to either the
circuit court or the tribal court.

(2)Discretionary
transfer.When a civil action is
brought in the circuit court of any county of this state, and when, under the
laws of the United States, a tribal court has concurrent jurisdiction of the
matter in controversy, the circuit court may, on its own motion or the motion
of any party and after notice and hearing on the record on the issue of the
transfer, cause such action to be transferred to the tribal court.The circuit court must first make a threshold
determination that concurrent jurisdiction exists.If concurrent jurisdiction is found to exist,
unless all parties stipulate to the transfer, in the exercise of its discretion
the circuit court shall consider all relevant factors, including but not
limited to:

(a)Whether
issues in the action require interpretation of the tribe's laws, including the
tribe's constitution, statutes, bylaws, ordinances, resolutions, or case law.

(b)Whether the
action involves traditional or cultural matters of the tribe.

(c)Whether the
action is one in which the tribe is a party, or whether tribal sovereignty,
jurisdiction, or territory is an issue in the action.

(d)The tribal membership
status of the parties.

(e)Where the
claim arises.

(f)Whether the
parties have by contract chosen a forum or the law to be applied in the event
of a dispute.

(g)The timing of
any motion to transfer, taking into account the parties' and court's
expenditure of time and resources, and compliance with any applicable
provisions of the circuit court's scheduling orders.

(h)The court in
which the action can be decided most expeditiously.

(i)The
institutional and administrative interests of each court.

(j)The relative
burdens on the parties, including cost, access to and admissibility of
evidence, and matters of process, practice, and procedure, including where the
action will be heard and decided most promptly.

(k)Any other
factors having substantial bearing upon the selection of a convenient,
reasonable and fair place of trial.

(3)Stay of proceeding in circuit court.When a circuit court transfers an action to
tribal court under this rule, the circuit court shall enter an order to stay
further proceedings on the action in circuit court.Jurisdiction of the circuit court continues
over the parties to a proceeding in which a stay has been ordered under this
section until a period of 5 years has elapsed since the last order affecting the
stay was entered in the court.At any
time during which jurisdiction of the court continues over the parties to the
proceedings, the court may, on motion and notice to the parties, subsequently
modify the stay order and take any further action in the proceeding as the
interests of justice require.When
jurisdiction of the court over the parties and the proceeding terminates by
reason of the lapse of 5 years following the last court order in the action,
the clerk of the court in which the stay was granted shall without notice enter
an order dismissing the action.

(4)Appeals.The decision of a circuit court to transfer
an action to tribal court may be appealed as a matter of right under s.
808.03(1).

(5)Effect
of transfer.When a circuit court
orders the transfer of an action to tribal court under this rule, the circuit
court shall retain the circuit court filing fee and shall transmit to the
tribal court a copy of all circuit court records in the action.

(6)Powers,
rights and obligations unaffected.Nothing in this rule is intended to alter, diminish, or expand the
jurisdiction of the circuit courts or any tribal court, the sovereignty of the
state or any federally recognized American Indian tribe or band, or the rights
or obligations of parties under state, tribal, or federal law.

Section 2.The following Comment to Wis. Stat. § 801.54 is not adopted,
but will be published and may be consulted for guidance in interpreting and
applying the statute:

COMMENT

The purpose of this rule is to
enable circuit courts to transfer civil actions to tribal courts in Wisconsin as efficiently
as possible where appropriate.In
considering the factors under sub. (2), the circuit court shall give particular
weight to the constitutional rights of the litigants and their rights to assert
all available claims and defenses.

IT IS FURTHER ORDERED that the circuit courts, tribal
courts, litigants, and attorneys affected by this rule shall advise the court,
in writing, regarding their experience of this rule on or before January 1,
2011.

IT IS FURTHER ORDERED that notice of creation of Wis.
Stat. § 801.54 be
given by a single publication of a copy of this order and the dissent thereto in
the official state newspaper and in an official publication of the State Bar of
Wisconsin.

Dated at Madison, Wisconsin,
this 31st day of July, 2008.

BY THE COURT:

David R. Schanker

Clerk of Supreme Court

¶1PATIENCE DRAKE ROGGENSACK, J.(dissenting). Four
Wisconsin Supreme Court justices, who constitute a majority of this court
today, legislate to create a rule by which circuit courts may transfer
jurisdiction of pending civil cases from Wisconsin circuit courts to any tribal
court in Wisconsin,
even when the litigants object to the transfer.I write in dissent because:(1)
Rule 801.54 is inadequate and misleading in regard to addressing tribal court
concurrent subject matter jurisdiction, which jurisdiction is extremely limited
in scope when nonmembers are parties to the action; (2) Rule 801.54
impermissibly alters the substantive rights of tribal members, as well as
nonmembers, contrary to the provisions of Wis. Stat. § 751.12(1) (2005-06),[3]
which limits the court's rule-making power; (3) Rule 801.54 undermines
federal and state constitutional and statutory rights of litigants; and (4) a
majority of the court has pushed this rule-change through before the end of the
2007-08 term of the court, even though the court has been presented with no
information about the substantive rights and civil procedures that are
available in tribal courts.

I.BACKGROUND

¶2Tribal courts provide meaningful dispute resolution to many tribal
members in courts that have well-grounded appreciations for the traditions so
important to tribal justice.The Rule
that the court implements today does not detract from their significant
contributions.

¶3However, today the court legislates through rule-making in
response to Rules Petition 07-11.In so
doing, four justices who constitute a majority of the court empower Wisconsin circuit courts to transfer pending civil
actions to tribal courts, even when parties object to being subject to tribal
court jurisdiction.The majority pushes
forward under Rule 801.54, even though the conduct that forms the basis for the
action may not have occurred on tribal land; even though all parties are not
tribal members; even though this court has been provided no information about
how the various tribal courts operate; and even though the United States
Supreme Court in Plains Commerce Bank v. Long Family Land & Cattle Co.,
554 U.S. __, 128 S. Ct. 2709 (2008),[4]
appears to have narrowed the occasions when tribal courts have concurrent
subject matter jurisdiction in civil matters.[5]Why has a majority of this court pushed this
rule change through notwithstanding the inadequacy of the information provided
to the court?I do not know, but I
suspect there is a reason that is not apparent from the materials submitted and
considered by the court in open conference.Time will tell.

II.DISCUSSION

A.Concurrent
Jurisdiction

¶4Rule
801.54, created by a majority of the court, requires that before a circuit
court may transfer jurisdiction of a pending matter to a tribal court, the
circuit court must determine that the tribal court has concurrent subject
matter jurisdiction.[6]Because Rule 801.54 is very broad, on its
face it has the potential to be applied to non-tribal as well as tribal members
for conduct that occurs off as well as on tribal land.

¶5Under
"Public Law 280," Wisconsin courts
have subject matter jurisdiction over civil actions that arise on tribal land
between tribal members, or where a tribal member is a party.[7]Public Law 280 expands the scope of Wisconsin courts' jurisdiction into subject matters that
in some states are handled by federal courts, but Public Law 280 does not
address the subject matter jurisdiction of tribal courts.Tribal court subject matter jurisdiction is
established by other federal laws and United States Supreme Court precedent.Nat'l Farmers Union Ins. Cos. v. Crow
Tribe of Indians, 471 U.S.
845, 851-52 (1985).Stated otherwise,
"whether a tribal court has adjudicative authority over nonmembers is a
federal question"; it is not decided under state law or tribal law.SeePlains Commerce Bank, 128
S. Ct. at 2716 (citing Iowa
Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 15 (1987)).

¶6The
United States Supreme Court has explained that tribal court concurrent
jurisdiction is extremely limited when non-tribal members are among the parties
to an action.Montana
v. United States, 450 U.S.
544, 565-66 (1981).The Court recently
has affirmed that tribal court jurisdiction over nonmembers for conduct that
occurs off tribal land is almost nonexistent, having been upheld on only one
occasion.Plains Commerce Bank,
128 S. Ct. at 2722.The Court has also said, "[T]ribes do
not, as a general matter, possess authority over non-Indians who come within
their borders:'[T]he inherent sovereign
powers of an Indian tribe do not extend to the activities of nonmembers of the
tribe.'"Id.
at 2718-19 (quoting Montana, 450 U.S.
at 565).

¶7Even
when nonmember conduct occurs on tribal land, the general rule is that tribes
lack subject matter jurisdiction over nonmembers.Montana,
450 U.S.
at 565.Tribes "may" have
concurrent subject matter jurisdiction over nonmembers:(1) to "regulate . . .the activities of nonmembers who enter
consensual relationships with the tribe or its members, through commercial
dealing, contracts, leases, or other arrangements," and (2) to regulate
nonmember conduct that "threatens or has some direct effect on the political
integrity, the economic security, or the health or welfare of the
tribe."Id. at 565-66.But as the Court's discussion of Montana in Plains
Commerce Bank shows, the exceptions to the lack of subject matter
jurisdiction are not to be broadly interpreted, but rather, they are extremely
limited.Plains Commerce Bank,
128 S. Ct. at 2720.

¶8In
Plains Commerce Bank, tribal members (the Longs) sued a nonmember
(Plains Commerce Bank) in tribal court, alleging that the bank discriminated
against them when it sold property.Id. at 2715.The Longs further alleged that the property
sales had arisen directly from their preexisting commercial relationship with
the bank, and accordingly, the sales fell within the first Montana exception to the general rule
that tribes lack jurisdiction over nonmembers.Id.
at 2715-16.The tribal jury awarded $750,000
in damages.Id. at 2716.The bank then brought a declaratory judgment
action in federal court asserting that the tribal court lacked subject matter
jurisdiction to adjudicate the claims, and therefore, the judgment was void.Id.

¶9The
Supreme Court agreed with the bank.The
Court began by explaining that the sovereign powers of tribes are limited by
virtue of the tribes' "incorporation into the American republic."[8]Id.
at 2719.In so incorporating, the tribes
generally lost the right to govern persons coming within tribal territory
except for tribal members.[9]Id.

¶10In
any attempt to exert jurisdiction over nonmembers, "[t]he burden rests on the
tribe to establish one of the exceptions to Montana's general rule" that
precludes jurisdiction over nonmembers.Id. at 2720.The burden of proof rests with the tribe to
establish concurrent jurisdiction in tribal courts because of the general rule
that tribal courts do not have jurisdiction over nonmembers.Rule 801.54 is in conflict with that
requirement of federal law because under Rule 801.54(2), a circuit court can
transfer a case to tribal court on its own motion.Therefore, the tribe would not be a moving
party who carries the burden explained by the United States Supreme Court in Plains
Commerce Bank.The circuit courts of
Wisconsin cannot make a discretionary transfer to tribal courts, sua sponte,
and still comply with this aspect of federal law because meeting that tribal
burden is one prerequisite for the exercise of subject matter jurisdiction by
tribal courts.

¶11Notwithstanding
the directive of the United States Supreme Court that the tribe has the burden
of establishing that it has concurrent jurisdiction with the circuit court, the
stated purpose of Rule 801.54 is "to enable circuit courts to transfer civil
actions to tribal courts in Wisconsin
as efficiently as possible where appropriate."Comment to Rule 801.54."Where appropriate" is determined
by the factors set out in sub. (2) of the Rule, which factors appear to presume
that there is concurrent jurisdiction in tribal court.This apparent presumption is contrary to
federal law, which holds that as a general rule tribes have no jurisdiction
over nonmembers.Plains Commerce Bank,
128 S. Ct. at 2719.By implying that the factors set out in sub.
(2) should be the focus of a circuit court's decision-making, Rule 801.54 is
misleading and has significant potential to cause a circuit court to transfer a
pending case to tribal court when the tribal court has no subject matter
jurisdiction to adjudicate the claims and defenses made.

¶12The
Supreme Court also has explained that "a tribe's adjudicative jurisdiction
does not exceed its legislative jurisdiction."Id.
at 2720.This is an important principle
because if a tribe could not pass a law that bound the conduct and the parties
whose claims and defenses a tribal court attempts to adjudicate, then the
tribal court lacks subject matter jurisdiction over those claims and defenses.[10]Id.

¶13It
is not a simple matter for a circuit court to determine whether a case fits
within one of the two very narrow Montana
exceptions to the tribal courts' lack of subject matter jurisdiction over
nonmembers.Rule 801.54 is completely
inadequate in addressing this major obstacle to the exercise of tribal court
jurisdiction over nonmembers; yet, it is a critical decision that must be made
before any such action may be heard in tribal court.This is so because the contention that a
court lacked subject matter jurisdiction may be raised at any time, even after
judgment.SeeArbaugh v.
Y&H Corp., 546 U.S.
500, 506-07 (2006); see also Fed. R. Civ. P. 12(c)(3).Furthermore, subject matter jurisdiction
cannot be created by waiver or consent.SeeUnited States
v. Hazlewood, 526 F.3d 862, 864 (5th Cir. 2008).The majority gives the circuit courts no
financial resources and no legal guidelines to assist with this weighty legal
task.

¶14At
the open administrative conference on June 25, 2008, the majority appeared to
take comfort in Rule 801.54(4), which provides that decisions transferring
cases to tribal court are appealable as of right.[11]However, an appeal is small comfort to
litigants who are already overburdened with legal fees; and it provides no
guidance to the circuit courts on the critical issue of whether there is
concurrent tribal court subject matter jurisdiction.

B.Wisconsin
Stat. § 751.12(1)

¶15This court's power to legislate, which we label as
"rule-making," is derived from Wis. Stat. § 751.12(1), which provides in relevant part:

The state supreme court shall,
by rules promulgated by it from time to time, regulate pleading, practice, and
procedure in judicial proceedings in all courts, for the purposes of
simplifying the same and of promoting the speedy determination of litigation
upon its merits.The rules shall not
abridge, enlarge, or modify the substantive rights of any litigant.

(Emphasis added.)

¶16Prior
to the creation of Rule 801.54, all litigants who satisfied the statutory
provisions for jurisdiction in Wisconsin courts had a statutory right to avail
themselves of the Wisconsin court system.SeeWis. Stat. § 801.04.The open courthouse doors of Wisconsin provide a
significant, substantive right for tribal as well as non-tribal litigants.However, when Rule 801.54 goes into effect,
the courthouse doors of Wisconsin
may be closed to some litigants, both tribal members and nonmembers.This change in the substantive rights of
litigants is contrary to the express provisions of Wis. Stat. § 751.12(1),
which provides that any "rule" this court creates "shall not
abridge, enlarge, or modify the substantive rights of any litigant."

¶17Black's
Law Dictionary's definition of "substantive law" supports my
conclusion that the right to litigate in the courts of Wisconsin is a substantive right.Black's defines substantive law as:

The part of the law that
creates, defines, and regulates the rights, duties, and powers of parties.. . ."So far as the administration of justice
is concerned with the application of remedies to violated rights, we may say
that the substantive law defines the remedy and the right, while the law of
procedure defines the modes and conditions of the application of the one to the
other."

¶18Furthermore, Rule
801.54 is contrary to our obligation to uphold the constitutions of the United States and the State of Wisconsin.As the United States Supreme Court has held, the United States
Constitution is not binding on tribal courts.Talton v. Mayes, 163 U.S. 376, 382-83 (1896).However, litigants in Wisconsin courts are protected by the United States
Constitution and the Wisconsin Constitution.SeeDep't of Admin. v. WERC, 90 Wis. 2d 426, 434-35, 280 N.W.2d 150
(1979).The constitutions provide the
framework in which the courts of the state of Wisconsin are obligated to operate.SeeState v. Cockrell, 2007
WI App 217, ¶34 n.10,
306 Wis. 2d
52, 741 N.W.2d 267.That constitutional
framework includes the United States Constitution's Bill of Rights and the
Wisconsin Constitution's Declaration of Rights.Helgeland v. Wis. Municipalities, 2008 WI 9, ¶13, 307 Wis. 2d 1, 745 N.W.2d 1.However, as separate sovereigns antedating
the Constitution, Indian tribes have "historically been regarded as
unconstrained by those [federal] constitutional provisions framed specifically
as limitations on federal or state authority."Santa ClaraPueblo v. Martinez,
436 U.S.
49, 56 (1978).

C.Lack of Information and Failure to Heed Concerns

¶19I also am deeply troubled by the majority's willingness to create
Rule 801.54 when this court has engaged in no fact-finding to determine the
procedures available in the tribal courts of Wisconsin and has ignored the
concerns expressed by others over the Rule's adoption.Further troubling is that, in adopting Rule
801.54, the court has not adhered to the usual procedure for drafting and adopting
court rules.

¶20First, a majority of the court rushes ahead to create Rule 801.54
even though the court has not been provided with descriptions from the
Wisconsin tribes about the procedures employed in the various tribal courts in
Wisconsin.Although the majority is correct
in its assertion that it received several responses to Petition 07-11, not one
of those responses provided information about the procedures by which each of
the various tribal courts operate.For
example, the court has not been presented information that provides when, or
if, a litigant may have a jury trial.[12]The court has not been presented information
that shows whether each tribe has a written code of laws or a constitution and
if those exist, what provisions they contain.The court has not been presented with information about what types of
evidence may be introduced during a trial.The court has not been presented with the educational or experiential
backgrounds of the persons who serve as tribal court judges.The list of what the court has not
investigated goes on and on.

¶21At the open conferences on Petition 07-11, I repeatedly requested
that the court require that the tribes provide specific information about how
the court of each tribe operates, before the court voted on Petition
07-11.However, a majority of the court
determined that its lack of information about tribal courts' procedures should
not prevent it from adopting Rule 801.54.I do not understand the majority's willingness to create a law that
sends Wisconsin litigants into tribal courts
when the majority lacks knowledge about the operation of those courts and over
which courts this court has no control or power of judicial review.This seems to me an abdication of the court's
obligation to protect the constitutional and statutory rights of litigants who
have chosen to file actions in Wisconsin
circuit courts.

¶22Second, the majority has ignored the responses of those who were
opposed to the creation of Rule 801.54 based on the Rule's failure to guarantee
individual rights.For example, Attorney
Meg Vergeront, who wrote on behalf of the Village of Hobart, expressed concern
that while Article I, Section 5 of the Wisconsin Constitution preserves the
right to trial by jury in all cases at law if the right to a jury trial existed
at the time the Constitution was adopted, there is no provision in Rule 801.54
to guarantee this right in tribal courts.

¶23 In addition, the Wisconsin Department of Justice's comments on
Petition 07-11 have been largely ignored.On February 22, 2008, the Department of Justice addressed its concerns
about, "Under what circumstances is jurisdiction concurrent between tribal
and state courts or exclusive in tribal or state court?"Rule 801.54 does not attempt to address this
important and complicated question.See
my discussion above in ¶¶4-14.

¶24The Wisconsin Department of Justice also addressed whether there
was "a right under the United
States or Wisconsin Constitution to have a
case heard in state court rather than tribal court?"The Department of Justice pointed out that a
"state may not arbitrarily restrict or deny access to its courts, nor may
it limit such access where that access is necessary for the exercise of
fundamental constitutional rights."The majority ignores this concern as well because it has been provided
with no information about what, if any, constitutional rights are available in
tribal courts.[13]I am dismayed that the court appears not to
have given due regard to the concerns expressed by Attorney Vergeront, the
Department of Justice and others who have pointed out the inadequacies of Rule
801.54, and instead, appears to have heeded only those who support the law the majority
creates.

¶25Finally, the procedures employed in adopting Rule 801.54 deviated
from our usual procedures for rule adoption.Petition 07-11 was drafted by the Director of State Courts, not the
State-Tribal Justice Forum, and Rule 801.54 was created by the court's own
redrafting of the rule proposed in Petition 07-11 through the efforts of the
Clerk of the Supreme Court.Neither of
these actions comports with our usual procedure for rule adoption.And lastly, Rule 801.54 was created even
though there was no showing that there was any need to send those who chose to
litigate in circuit court to tribal court.

III.CONCLUSION

¶26I write in dissent because:(1) Rule 801.54 is inadequate and misleading in regard to addressing
tribal court concurrent subject matter jurisdiction, which jurisdiction is
extremely limited in scope when nonmembers are parties to the action; (2) Rule
801.54 impermissibly alters the substantive rights of tribal members, as well
as nonmembers, contrary to the provisions of Wis. Stat. § 751.12(1), which limits the court's rule-making power;
(3) Rule 801.54 undermines federal and state constitutional and statutory
rights of litigants; and (4) a majority of the court has pushed this
rule-change through before the end of the 2007-08 term of the court, even
though the court has been presented with no information about the
substantive rights and civil procedures that are available in tribal courts.

¶27I am authorized to state that Justices DAVID T. PROSSER and ANNETTE
KINGSLAND ZIEGLER join in this dissent.

[1] In
keeping with the court's usual practice, A. John Voelker, Director of State
Courts, frequently submits petitions for rules on behalf of court
entities.See, e.g., petition nos. 06-01
(In re amendment of SCR 72.01 Regarding
Record Retention), 06-07 (In the matter of the Creation of a Court Rule
Authorizing Use of Electronic Signatures by Court Officials), 06-08 (In the
matter of the Creation of a Court Rule Governing Electronic Filing in the
Circuit Courts), 07-05 (In the matter of the Amendment of Supreme Court Rule
32.09 regarding continuing education for Wisconsin Judiciary), 07-12 (In the
matter of the petition to create a rule governing the use of videoconferencing
in the courts), 07-14 (In the matter of the Amendment to SCR 70.14(2)
formalizing vice-chairperson position on the Planning and Policy Advisory
Committee (PPAC)), and 08-01 (In the matter of the Amendment of Rules of
Pleading, Practice and Procedure: Wis. Stat. Rule Ch. 756, Juries).Furthermore, as the court considers a
petition, it is the court's practice to assign a court commissioner or the
clerk or chief deputy clerk of the supreme court to staff the petition,
communicate with interested persons, and redraft the proposed rule in
accordance with the court's instructions.

[2] The
State-Tribal Justice Forum is a joint committee of state and tribal court
representatives established by Chief Justice Abrahamson in 2005 to promote and
sustain communication, education, and cooperation among tribal and state court
systems.The committee consists of five
circuit court judges, five tribal judges, one tribal attorney, one legislative
liaison, one district court administrator, and the director of state courts.

[3]All subsequent
references to the Wisconsin Statutes are to the 2005-06 version unless
otherwise indicated.

[5]The majority refers to
a document provided by the tribal courts as listing the areas over which the
tribes assert they have subject matter jurisdiction.See majority op., p. 4.However, this listing has no affect on
whether a tribe has concurrent subject matter jurisdiction with a circuit
court.This is so because, while the
tribes may identify the matters over which they assert that they exercise
subject matter jurisdiction, whether they actually have concurrent subject
matter jurisdiction is a question of federal law, not tribal law.Id.
at 2716.

[6]The rule states in
relevant part:"In a civil action
where a circuit court and a court or judicial system of a federally recognized
American Indian tribe or band in Wisconsin ('tribal court') have concurrent
jurisdiction, this rule authorizes the circuit court, in its discretion, to
transfer the action to the tribal court ...."Rule 801.54(1).

[7]Public Law 280, a
portion of which is set out in 28 U.S.C. § 1360, provides in relevant part:"[Wisconsin] shall have jurisdiction
over civil causes of action between Indians or to which Indians are parties
which arise in the areas of Indian country [within Wisconsin] to the same
extent that [Wisconsin] has jurisdiction over other civil causes of action, and
those civil laws of [Wisconsin] that are of general application to private
persons or private property shall have the same force and effect within such
Indian country as they have elsewhere within [Wisconsin]."18 U.S.C. 1151 defines "Indian
Country."(Public Law 280 does not
include the Menominee Tribe due to "retrocession of jurisdiction by the
State of Wisconsin."Panzer v. Doyle, 2004 WI 52, ¶12 n.6, 271 Wis. 2d 295, 680 N.W.2d
666).

[8]The court in Plains
Commerce Bank, 128 S. Ct. at 2721, cited two limited types of
exceptions that involved the regulation of nonmember activities on reservation
land "that had a discernable effect on the tribe or its
members":Williams v. Lee,
358 U.S. 217 (1959) (concluding the tribe had jurisdiction over a contract
dispute about "the sale of merchandise by a non-Indian to an Indian on the
reservation"); Washington v. Confederated Tribes of the Colville Indian
Reservation, 447 U.S. 134 (1980) (upholding tribal determination of the
taxing authority of the tribe for activities by non-Indians on reservation
land).The Court cited other cases that
also upheld tribal determinations involving taxes for activities within tribal
land.

[10]In Plains Commerce
Bank, the tribe lacked "the civil authority to regulate the Bank's
sale of its fee land," and therefore, the tribal court could not
adjudicate the circumstances under which the land sales were made.Id.
at 2720-21.

[12]Our lack of information in this regard is further troubling and
problematic, because a litigant may be compelled to appear before a jury whose
composition is less than that provided for under Wisconsin
statute.In Wisconsin
state courts, civil litigants who request a jury trial are guaranteed at least
six jurors.Wis. Stat. 756.06(2)(b).If tribal courts employ juries comprised of
less than six persons, litigants in tribal courts may be compelled to
relinquish a state statutory right.

[13]However, as I explained
in ¶18, the United
States Supreme Court has concluded that the United States Constitution is not
binding on tribal courts.Talton v.
Mayes, 163 U.S.
376, 382-83 (1896).